Supreme Court agrees to decide major abortion case: not good news for Roe v. Wade

May 17, 2021 • 10:15 am

This article from the NYT, and several others, is not good news for pro-choice people or supporters of Roe v. Wade, of which I’m one.  Click on the screenshot:

The decision to take up the Mississippi abortion restrictions was made by the Supreme Court this morning.

Determined to overturn Roe v. Wade, and, indeed, in some cases to prohibit abortion nearly completely, a number of states passed palpably unconstitutional laws designed to get wend their way to the Supreme Court, hoping that the new conservative court would roll back the federal abortion law. One of those states was Mississippi. As the NYT reports:

The case, Dobbs v. Jackson Women’s Health Organization, No. 19- 1392, concerns a law enacted by the Republican-dominated Mississippi legislature that banned abortions if “the probable gestational age of the unborn human” was determined to be more than 15 weeks. The statute included narrow exceptions for medical emergencies or “a severe fetal abnormality.”

Lower courts said the law was plainly unconstitutional under Roe, which forbids states from banning abortions before fetal viability — the point at which fetuses can sustain life outside the womb, or around 23 or 24 weeks.

Mississippi’s sole abortion clinic sued, saying the law ran afoul of Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding.

Judge Carlton W. Reeves of Federal District Court in Jackson, Miss., blocked the law in 2018, saying the legal issue was straightforward and questioning the state lawmakers’ motives.

Note that Mississippi has just ONE abortion clinic, but was successful in getting the Mississippi law blocked. As NBC News reports, the judge who blocked the law said that the state: “”chose to pass a law it knew was unconstitutional to enforce a decades-long campaign, fueled by interest groups, to ask the Supreme Court to overturn Roe v Wade.”  I suppose there’s no law against passing an unconstitutional law, for that’s how cases get re-adjudicated.  But there was nothing mandating readjudication save the composition of the Supreme Court.

That the Supremes decided to take up the appeal by Mississippi is not a good sign, for had they turned it back, the law would have remained blocked. Can you imagine that the new court would uphold Roe v. Wade? I can’t.

In 1973 Roe v. Wade was decided by a 7-2 vote, with White and Rehnquist dissenting. Now, however, conservatives have a 6-3 majority, and I’m feeling a bit queasy. The NYT says that the Supremes will hear arguments in the next term, which begins in October, and render a decision by mid 2022.

Does this mean that when science improves to the point when a fetus can remain viable outside the womb from day 1, with gestation provided in vitro, then abortion will become completely illegal except, perhaps, in cases of incest, rape, or severe deformities incompatible with life? For one thing is for sure: someday science will get to that point.

 

h/t: Ken

70 thoughts on “Supreme Court agrees to decide major abortion case: not good news for Roe v. Wade

  1. “Can you imagine that the new court would uphold Roe v. Wade? I can’t.” – Nope, me neither – if they weren’t going to interfere they would have turned it back, I suspect.

    1. Finley Peter Dunne’s early 20th century fictional character Mr. Dooley used to say “no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns.”

      That’s a comic overstatement, of course, but there’s some truth to it. SCOTUS isn’t comfortable venturing too far off the curve of public opinion. Not for no reason is it known as “the least dangerous branch.” In a sense, it is a paper tiger, having no mechanism for enforcing its decisions — no army or law enforcement agency under its command — but depending instead upon the deference due it from the political branches, and from the American people, to abide by its decisions.

  2. Of the current six-justice conservative majority, I take it there are at least three solid votes to overturn Roe outright — Justices Thomas, Alito, and the Court’s most recent appointee, Amy Coney Barrett. Chief Justice Roberts, I think, is too much of an incrementalist, has too much (at least putative) regard for precedent, and is too concerned with the reputation of the Court that bears his name to overrule Roe in one fell swoop.

    That means the fate of Roe looks to rest on the shoulders of the first two Trump appointees, Justices Gorsuch and Kavanaugh. Not a comfortable state of affairs for those who support constitutionally based reproductive rights.

    This is one of those cases where the opinion will likely be handed down in the waning days of the Court’s next term, sometime in June 2022. One way or the other, it will end up being a hot topic in next year’s midterm elections.

    1. My entirely uninformed opinion is that Kavanaugh is a lock for overturning Roe since it took 4 Justices to agree to hear the case in the first place, so someone outside of your three wanted this case (…and I think it’s him).

      So I think it hinges on Goresuch.

      There is, however, the longshot possibility that they took it to put challenges to Roe and Casey to rest for another generation, i.e. signal to the states to stop doing this sort of thing. I wouldn’t bet on that, though.

      1. It occurs to me that your suggesting timing (i.e. a ruling in June 2022) creates a “perverse incentive” whereby the Dems are helped in the mid-terms if the Court rules against Roe, while the GOP is helped in the mid-terms if the Court upholds it. Either way, some group of voters is going to be really angry with their government come that November.

          1. You do know how PIGD works?
            Generally “they” separate a cell from the pre-differentiation embryo, and test that. So that scenario is already pretty much here.

        1. The right-wing evangelicals will go absolutely batshit if, with three Trump appointees on the bench, SCOTUS fails to overrule Roe v. Wade or, at the very least, fails to uphold the Mississippi statute at issue (which would be the functional equivalent).

          Getting rid of Roe was the quid in the Faustian pro quo bargain evangelicals struck when voting for their golden calf. (How’s that for mangling literary and biblical allusions? 🙂 )

          1. I think they’ll get it. But I think “functional equivalent” will be the case. My best bet would be they’ll write lots of flowery words about how their new ruling is “expanding” Roe and improving it by giving the states greater freedom to implement Roe and interpret ‘viability’ the way they see fit. Freedom! Local control!

      2. There is, however, the longshot possibility that they took it to put challenges to Roe and Casey to rest for another generation, i.e. signal to the states to stop doing this sort of thing.

        Could be, Eric. Could also be that Karl Hungus actually came over to fix the cable in Logjammin’. 🙂

    2. If the overwhelmingly Republican SCOTUS overturns Roe v. Wade, that could be a teaching moment for the US public, coming just in time for the 2022 Congressional elections, as Ken no doubt appreciates.
      Justice Roberts, in his sly pragmatism, no doubt understands this as well. So, do we have any insight into what to expect of Justices Gorsuch and Kavanaugh? If they go against Roe, we may at least get a step forward in adult education.

      1. I always wonder what happens when the dog chasing the car finally catches it. Reckon now we find out.

  3. Is there any chance SCOTUS took the case in order to comment on creating purposefully unconstitutional laws? Nah.

    If they do overturn Roe, it will just force the Dems to pass a law making abortions legal, won’t it? Republicans will fight it tooth and nail of course but they’d be fighting something a majority of the American people want. Still, I doubt the Biden administration really wants this particular fight.

    1. If they overturn, it might also force Biden’s hand in expanding the court to counter right-wing court-packing.

      1. Maybe but I’m doubtful Biden wants to pack the court or anything like it. He wants to return American politics to something approaching normalcy, not play the GOP’s “anything goes” partisan politics. I think this is the right way to go though I sometimes wish the Dems should fight as hard as the GOP. Fight hard but not dirty.

      2. … which will immediately (if not sooner) be characterised as “left-wing SCOTUS-packing”.
        Britain’s elected house has been having problems with it’s unelected house (and highest court) for … about 5 centuries now? So I’d be slightly surprised if America comes up with a solution in less than 3 centuries. 2075 … won’t be an election year, will it?

  4. If the Democrats want to stand up to the conservative onslaught on the country, they have to start fighting back with equal intensity. That means packing the court. They need to add at least two more seats. But of course Joe Manchin won’t agree.

  5. If Roe were overruled, the sole power to regulate abortion would revert to the states (as was the situation until 1973). The Dems can try to pass a federal law legalizing abortion, but good luck getting that past the 60-vote threshold for cloture of a senate filibuster. Such a law could also raise federalism concerns, once SCOTUS has said the US constitution provides no guarantee for reproductive rights. Congress’s authority to pass such a law would turn upon its Commerce Clause powers.

    1. But perhaps the Dems attempt to pass such a national law might be used to make the GOP “pay” for taking an unpopular position. And, of course, passing state laws legalizing abortion would still be a good move toward making abortion “legal but rare”.

      1. making abortion “legal but rare”.

        Remind me again of what the rate of abortion is when it is easily available – and by implication, the approximate rate of unwanted pregnancies in the presence of readily-available safe contraception.
        Something on the order of half of women have had an abortion in Britain, since 1967.

        “rare” ?

        1. I was simply repeating the standard phrase, not taking a stand. Assuming your statistics are correct, I guess we should pushing contraceptives harder.

          1. Pushing contraceptives is taking control of fertility out of “God’s” hands and into Man’s. Fundamental no-no in those circles.
            Next thing, you’ll be arguing that “rape within marriage” isn’t a contradiction in terms and that churches should pay taxes. L.Ron and his followers will be after you for thinking that.

            1. I have nothing to say about it being weaselly but “rare” was a good way to push back against the anti-abortion crowd’s painting of the opposition as intent on killing as many unborn children as possible.

  6. If anyone thinks Roberts will figure out a way to stop this republican lean I would say think again. Roberts is the guy that has us right in the middle of just as big a fight as abortion and that is the right to vote.

  7. But Roberts is very astute, and surely knows that reversing Roe would make the “pack the Court” movement 50 times more powerful, and the prestige of the Court itself very significantly weaker in most parts of the country. I think he will try to figure out some way to preserve Roe, or at least to keep any modification of the original rule pretty modest. The question, as Ken Kukec notes is whether he will be able to get Gorsuch and Kavanaugh to go along.

    Reversing Roe would be a short-term triumph for conservatives, but in the longer term it would be a disaster for both the Court and the Republican party.

    1. The Republicans already know that their policies are vastly unpopular. They’re betting all their chips on voter disenfranchisement and preserving gerrymandering and Citizens United, not on winning over popular opinion, which they know is a lost cause.

      1. But their ability to continue gerrymandering and figuring new ways to disenfranchise minority voters depends on a Court that is acquiescent. Reversing Roe would be one of the few things that might change the nature and the attitude of the Court.

      2. You’re right, of course, but that doesn’t mean that their support for unpopular policies can’t be used against them and doesn’t matter in elections. The trick is making GOP-leaning voters care more about policy than tribalism.

        1. And that’s a tricky trick. I don’t know if it’s possible. You can talk all the policy points you want, but as soon as Tucker cries socialism and discrimination against whites and christians, that’s all they hear.

        2. I think the trick is appealing to the average liberal American, centrists and Independents, not GOP-leaning voters, because that constituency has shrunk dramatically, and frankly, they’re not supportive of democracy at the moment.

          1. It’s probably just a labeling issue but when I think of “GOP-leaning”, I’m thinking of those that voted GOP before Trump, might have voted for Trump in 2016 or even 2020 but now realize their mistake. On the other hand, it was easy to imagine Trump losing some of his 2016 voters but harder to imagine him losing too many of his 2020 voters. The latter did so with full knowledge of Trump’s agenda and shortcomings. His insurrection and “stop the steal” campaigns are successful. Perhaps all we can hope for is they don’t turn out in 2022 and 2024. Perhaps Trump will be in jail or dead by then.

            1. Based on your definition of “GOP-leaning”, I agree that some of those voters can be won over; Biden’s recent approval ratings revealed that some republicans are supporting him. But to keep Trump at bay and to strengthen our democracy (or keep it from falling off a cliff) the Senate needs to pass HR 1 and the Lewis Voting Rights Act. If they don’t, the Big Lie will continue to seep into our politics and further denigrate our institutions. I thought the EC was a big disadvantage for the majority, what these red states are passing in regards to voting rights (and abortion rights for that matter) is unconscionable and frankly hair-on-fire alarming.

              1. Agreed but I have my doubts that those laws will pass. After all, they are diametrically opposed to the GOP agenda. It’s really scary.

    2. Oh they won’t “overturn Roe.” They’ll pay it lip service and talk about how women’s rights are still preserved…while they gut it.

      That’s been their MO in the past. Of course employees still have a right to nondiscriminatory health care…we’re just ensuring owners have the freedom to express their religious beliefs!

  8. I wonder how at-home, medication-induced abortions (available during the first 10 weeks of pregnancy) will affect the landscape of abortion rights if Roe v. Wade is overturned or weakened. During the pandemic, these have become easier because the ban on receiving at-home abortion pills by mail has been temporarily suspended. Even if the ban is reinstated (which a lot of people are arguing against), I would think that the combination of telemedicine plus mail-order pills will be hard to dial back now that it’s been happening. If nothing else, it seems like it would be a lot harder to regulate than surgical abortions in clinics.

    1. In Brazil abortion pills are readily obtained in spite of their illegality. That’s what will happen here. Just another war on drugs that will fail.

    2. Oh they’ll be on the chopping block.

      The conservative-ruled states are pretty clear about their end goal: since a zygote is a person, intentionally terminating them at any time and by any means is murder.

      I would think that the combination of telemedicine plus mail-order pills will be hard to dial back now that it’s been happening.

      I expect the conservative response to that would be to make those drugs illegal, including illegal to ship into the state.

      1. Banning mail-order pills would hurt the pharmaceutical industry, and I don’t see that happening.

      2. make those drugs illegal, including illegal to ship into the state.

        So, grounds to open snail-mail in general. [sniff] [crocodile tears]

    3. Yes, it can even be done after 10 weeks, but should preferably be under medical supervision. There are complications such as uterine bleeding or even uterine rupture.
      If Roe vs Wade is overturned I foresee a thriving black market in Mifepristone and Misoprostol. And quite a few backstreet abortions in states that make abortion illegal

      1. I’ll put a beer on one of the “Trump 2024” campaign slogans being “Illegal’s lives don’t matter”. Are you taking that bet?

  9. To me personally, the abortion stance is the worst thing about the republicans. It is a religious argument, and even most republicans that I know are skeptical of religion. It is not even a particularly Protestant thing. As I understand it, the decision was made to oppose abortion mostly to accommodate the Catholics, and are moving towards the same stance on birth control.

    It would be nice if SCOTUS would decide that abortion is one of those subjects that lies in the realm of “nobody’s business”. That has always been my view. It does not matter to me if life begins at conception, because it is just none of my business. Life would be better for all of us if people spent a bit more time minding their own business.

    Frau Dr. Blancke believes, with good reason, that abortion restrictions inevitably lead to an increase in suicides among young women. There is already a booming business in dubious Mexican misoprostol in Texas.

    1. I doubt the anti-abortion crew is actually interested in reducing the number of abortions. If they were, they would be on the barricades for what has proven to be the only way to effectively reduce the numbers: good and early sexual education and easy availability of contraceptives.
      They are not. Therefore I can only conclude that their motive is ulterior.

      1. To me, the motive is punitive. It’s largely about punishing those who break the sanctioned rules about sex (sex is procreative and done only by married couples) target than anything else. It’s why they go to lengths to say things like pregnancy doesn’t happen in the case of rape, or that condoms are ineffective in preventing pregnancy or STIs.

        The rules of the game are that we couple to make more of us, and babies are God’s blessing. Going against that is a moral failing worthy of God’s wrath (and our approximation of it in enforcing it).

        1. Right. So those that claim that they are just stupid since they could prevent more abortions via birth control are either just stupid themselves or are intentionally trying to make the other side look incompetent, when in reality there is just disagreement about the goal.

          Similar are the terms “pro choice” and “pro life”, which imply that the other side is “anti choice” or “anti life”. With few exceptions, that is not the case. Rather, the goal is different.

          The most illogical thing is to claim that those who won’t allow abortion even in the case of rape or incest are somehow even worse. Actually, they take themselves seriously, since if abortion is murder, there can be no exceptions. You (and I) might disagree that abortion at 4 weeks is murder, but that is the bone of contention in the debate. It is wrong to fault an opponent for taking his own position seriously. Also, that claim implies that there is a logically tenable position that abortion is forbidden in general but allowed in cases of incest or rape, but it seems that no-one actually supports that: either it is murder and there are no exception, or it is not and should be generally allowed (up to some stage). (Note that the issue of abortion to save the life of the mother is an entirely different issue.)

          1. That changes little: if abortion is murder, it appears the anti-abortion crowd is not interested in reducing the number of murders.

            1. Sure it does. If they get their way, then no abortions.

              Yes, there might be a black market, but that is no reason to make it legal. Murder (of children or adults) is illegal, but, since there are murders, not completely effective, but that is not an argument to make it legal.

              I think that many really do believe that abortion is murder. They also think that accidental pregnancies should be punished—-not by abortion, but by having the child.

          2. I think the difficultly is getting into the right mindset. Moralists don’t care about the greater good (or anything remotely utilitarian), so it doesn’t matter whether it’s effective. What matters is whether the law allows for immorality or not. The law as it stands allows (in their eyes) murder, and they ain’t gonna care whether or not they can reduce numbers but punish the wicked.

            It’s the same mindset that makes the War on Drugs such a smashing success…

            That said, arguing over how effective it is as a strategy *is* how a democracy debates issues. An intervention that achieves nothing or is even counterproductive holds little water, and it should be an embarrassment to anyone advocating it. Those kind of arguments aren’t meant to persuade anyone to change their minds in abortion, but they should give pause about what a society should do in relation to abortion. Only a hardline moralist wouldn’t care about what actually works, because results do matter to the rest of us.

            It depends on your aims in a debate, I suppose. If the goal of being “right” morally-speaking, then it doesn’t matter how the issue plays. If the goal is to argue about what makes a good society, then instrumental arguments matter.

            1. Makes sense if their only goal were to reduce the number of abortions, but they also want to reduce the number of unplanned pregnancies, but not at the cost of supporting contraception, especially not for the unwed.

              1. There’s a part of me that thinks they want to set people up to fail so they can look down on them – think there’s a German word for that – piety needs impiety to mean a damn.

                But I get the mindset. Right is right, and wrong is wrong, and it doesn’t matter whether it’s practical, convenient, or even achievable for most people. I fully believe that those who say abortion is murder believe it, and I believe them when they think the way they go about it will make a better society.

    2. There is already a booming business in dubious Mexican misoprostol in Texas.

      Hmm. There is a business opportunity for reliable European misoprostol (and there’s at least one other related drug) to ship into Texas. Hell, our drug companies would even pay taxes!

    1. The Republican party, now led by the Orange Oaf of destruction, is hell-bent on suicide by a thousand bites. So be it, they really enjoy being dragged behind the bus, trying to keep up keeping up. Except they are resorting to fascistic tactics nowadays, and too many American’s have always shined a bent towards that world-view. Speaking for myself, I’m a wee bit worried.

  10. Fortunately abortions are much less common now due entirely to long term contraception (implant, mainly) which is idiot proof.
    Still… the iron age fairy tales which resent women having control over their reproduction are repulsive.

    And the people outside clinics yelling don’t know any neurology: that until 28 weeks there is no reverberating neural activity between the thalamus and the cortex: there’s just the “look” of a baby and reflexes, meaning before 28 weeks it is basically an appendix or a wisdom tooth. Like the frame of a half built house which looks like a house but isn’t plugged in. (I got into BIG TROUBLE for writing the above in an article once, but it is true!).

    The Christ Clappers will win this one ultimately I’d guess.
    D.A.
    NYC

    1. long term contraception (implant, mainly) which is idiot proof.

      “idiots” are dangerously inventive.

  11. Since the 70’s I’ve know of women who were skeptical of whether or not Roe v Wade would stick, and were ready to start their own version of the underground railroad. Still are.

  12. I don’t think any of the justices want to overturn Roe v. Wade. There are fine arguments saying the decision is poorly reasoned–but it is still true that there are situations where abortion is the best of two bad options; careful conservatives see this as well as thoughtful liberals. I think none of the nine has any interest in undoing abortion rights in the U.S.

    1. Were that the case, it would’ve been simple enough for the Court to have denied certiorari thereby letting the status quo stand. SCOTUS has instead elected to address the first issue presented in the State of Mississippi’s cert petition — “Whether all pre-viability restrictions on elective abortions are unconstitutional” — meaning that at least four of the nine sitting justices wish to revisit the Roe/Casey line of cases.

  13. It’s strange that abortion has become the rallying cry that differentiates the pious folk from the heathens. Not helping the poor, not building a better society, not committing to fight corruption, nor fighting for a better educated nation… Nope it’s all about abortion with no care to anything that might make people’s lives better.

    1. And even though they are aghast at the thought any research from stem cell research, etch, they have no problem with those “extra” eggs used for fertility treatments. They merely freeze them, and put them up for adoption.

      “Snowflake babies” is still the term. They also have ‘special needs’ ones that would have known serious birth defects. They didn’t want to have them, but someone else could adopt and raise.

      Found out about that it twenty years ago, at a right-to-life ethics conference. Such clinics are still still in business, but with updated advertising. The RTL crowd can justify anything. Because God’s always willing to make exceptions just for them.

  14. I was reading recently an article about “artificial placentas” and “baby in a bag” technologies as adjuncts to treating profoundly premature births (pre-about 28 weeks, but it’s a flexible boundary). There is a definite, and ethically unchallenging, target there for helping women with diseases and pregnancies so that both and baby survive. Consider the case of a woman whose 13 week (I’m a bit rough on the dates – not a problem I need to study) ultrasound reveals an aggressive cancer masked by the pregnancy disruptions.
    The technology to build an “artificial uterus” and “artificial placentas” certainly isn’t there, yet, but development is proceeding in veterinary contexts, and I can’t think of any “show stoppers” in the process. There is a sufficient human medicine market that the financial vultures of the health industry will convert the veterinary technology to human use when they see a profit margin. Then they’ll improve the profit margin by lobbying to improve utilisation rates and economies of scale.
    Rich women who are “too posh to push” will also both pay for and promote this technology.
    – Basic technology : https://www.nature.com/articles/ncomms15112
    – Development work continues in various places, including Childrens Hospital Of Philadelphia (and other countries and states).

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